History of Animal Patents

Definition of a Patent

For over 200 years, the U.S. Patent and Trademark Office (USPTO) has issued patents, or exclusive property rights, to inventors of "any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof." According to the USPTO, "The subject matter sought to be patented must be sufficiently different from what has been used or described before that it may be said to be nonobvious to a person having ordinary skill in the area of technology related to the invention." Anyone wishing to use the patented product would be required by law to obtain permission from, and usually pay a fee to, the patent holder. Thus, two criteria must be met for a patent to be awarded: the invention must consist of patentable subject matter, and the invention must be non-obvious to individuals with expertise in the relevant field.

Animals as "Patentable Subject Matter"

Until 1980, the USPTO had prohibited the patenting of living organisms. Organisms were considered "products of nature," and thus not patentable. That all changed, unfortunately, when the U.S. Supreme Court considered an appeal of a denied patent application for an oil-eating bacterium. By a vote of 5-4, the Court ruled that the "relevant distinction is not between living and inanimate things, but whether living products could be seen as 'human-made inventions.'"

Some years later, after deciding that genetically modified oysters could be patentable 'subject matter,' the USPTO in 1987 announced, without Congressional backing, that it "now considers nonnaturally occurring, nonhuman, multicellular living organisms, including animals, to be patentable subject matter."

First Animal Patent Issued

The USPTO issued its first patent for an animal in 1988, for the 'Oncomouse,' a mouse genetically-manipulated to develop cancers mimicking human diseases. In awarding the Oncomouse patent to Harvard University, the U.S. became the first country in the world to issue a patent for an animal, who later that year was labeled as "Product of the Year" by a popular financial magazine. However, public concern was so strong that legislation for a moratorium on animal patents was considered by Congress in 1987 and 1989, and an unsuccessful legal challenge was filed by an animal protection organization. Since then, the Oncomouse has been patented in both Europe and Japan.

More than 660 Animal Patents Issued So Far in U.S.

Since the USPTO's announcement in 1987 that animals are "patentable subject matter," over 660 patents have been granted on animals. Some examples include:

• genetically manipulated mice and frogs for use in testing nerve gas, derived through research funded by the U.S. Army;
• horses and mice who have been implanted with thymus and liver organs from a human fetus of approximately 24 gestational weeks; and
• rats whose brains were injected with aluminum salts to induce Alzheimer's disease, a uniquely human malady.

More examples are described here.

Because patents are used to restrict competition, major universities, government agencies, and corporations that have patented animals have a significant financial incentive to encourage the use of patented animals in biomedical research and testing, thereby discouraging the use of non-animal methods. The availability of animal patents also encourages companies to continue to invest heavily in animal studies in the hopes of being financially rewarded for developing animal models. The increase in animal patenting seen in recent years, due largely to the proliferation of genetic engineering, represents a serious threat to efforts to reduce animal suffering caused by experimentation.

Animals Cannot Be Patented in Canada

In December 2002, in a 15 year-long case involving the infamous Oncomouse, the Supreme Court of Canada ruled 5-4 against Harvard University, declaring that mice and other "higher" animals could not be patented according to Canadian laws, which feature definitions almost identical to those in the U.S. Harvard, which markets mice under the Oncomouse patent through the DuPont company, argued that genetically-altered animals should be legally defined as "patentable machines," but the Canadian Court disagreed.

The Court decision stated that, "Several important features possessed by animals distinguish them from both micro-organisms and plants and remove them even further from being considered a 'composition of matter' or a 'manufacture' [emphasis added]. In particular, the capacity to display emotion and complexity of reaction and to direct behaviour in a manner that is not predictable as stimulus and response, is unique to animal forms of life." The Court did, however, permit the patent claims on the process to produce the genetically-altered mice.

Ability to Challenge Patents Broadened in U.S.

The U.S. Patent Law was changed in 1999 so that challenges to any newly-issued patent can be submitted by any person or organization to the USPTO, and any challengers can now participate in the proceedings. If a challenger is dissatisfied with the decision of the USPTO, an appeal can be made to the Federal Circuit Court, and possibly, the Supreme Court. This has allowed AAVS to challenge some of the animal patents that have been issued, including the rabbit patent and the beagle patent, in an attempt to get these patents repealed and save these animals from being harmed for profit.